Federal judge: Texas abortion limits unconstitutional

In this July 12, 2013 file photo, abortion rights supporters rally on the floor of the State Capitol rotunda in Austin, Texas. New abortion restrictions passed by the Texas Legislature are unconstitutional and will not take effect as scheduled on Tuesday, Oct. 29, 2013, a federal judge has ruled.

Nearly 40 percent of the women we serve at Whole Woman's Health choose medication abortion and now Texas is preventing these women from the advances in medical practice that other women across the United States will be able to access. These restrictions are not based on sound medical practice.—Amy Hagstrom Miller, president of Whole Woman's Health

AUSTIN, Texas — A federal judge has determined that new Texas abortion restrictions violate the U.S. Constitution, a ruling that keeps open — at least for now — dozens of abortion clinics that were set to halt operations Tuesday had key parts of the law taken effect.

In a decision released Monday that the state is certain to appeal, District Judge Lee Yeakel wrote that the regulations requiring doctors to have admitting privileges at a nearby hospital creates an undue obstacle to women seeking an abortion.

"The admitting-privileges provision of House Bill 2 does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman's health and, in any event, places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her," he wrote.

While Yeakel found that the state could regulate how a doctor prescribes an abortion-inducing pill, he said the law did not allow for a doctor to adjust treatment taken in order to best protect the health of the woman taking it. Therefore he blocked the provision requiring doctors to follow U.S. Food and Drug Administration protocol for the pills in all instances.

"The medication abortion provision may not be enforced against any physician who determines, in appropriate medical judgment, to perform the medication-abortion using off-label protocol for the preservation of the life or health of the mother," Yeakel, appointed by President George W. Bush, wrote.

Lawyers for Planned Parenthood and other abortion providers that brought the lawsuit had argued the requirement that doctors have admitting privileges at a hospital within 30 miles of the abortion clinic would force the closure of a third of the clinics in Texas. They also complained that requiring doctors to follow the FDA's original label for an abortion-inducing drug would deny women the benefit of recent advances in medical science.

Other portions of the law, known as House Bill 2, include a ban on abortions after 20 weeks and a requirement beginning in October 2014 that all abortions take place in a surgical facility. Neither of those sections was part of this lawsuit.

Amy Hagstrom Miller, president of Whole Woman's Health, celebrated the victory on admitting privileges but said the judge did not go far enough in overturning the requirement that doctors follow an 18-year-old protocol in prescribing medical abortions.

"Nearly 40 percent of the women we serve at Whole Woman's Health choose medication abortion and now Texas is preventing these women from the advances in medical practice that other women across the United States will be able to access," she said. "These restrictions are not based on sound medical practice."

The Texas attorney general's office had argued that the law protects women and the life of the fetus. Attorney General Greg Abbott was expected to file an emergency appeal of Yeakel's order to the 5th Circuit Court of Appeals in New Orleans.

"Today's decision will not stop our ongoing efforts to protect life and ensure the women of our state aren't exposed to any more of the abortion-mill horror stories that have made headlines recently," Republican Gov. Rick Perry said in a statement. "We will continue fighting to implement the laws passed by the duly-elected officials of our state, laws that reflect the will and values of Texans."

The law requiring admitting privileges was the biggest obstacle facing abortion clinics in Texas, and the ruling gives them a temporary reprieve until new regulations go into effect next year.

Mississippi passed a similar law last year, which a federal judge also blocked pending a trial scheduled to begin in March. Mississippi's attorney general asked the 5th Circuit to lift the temporary injunction so the law could be enforced, but the judges have left it in place signaling they believe there is a legitimate constitutional question.

Unlike the Mississippi case, Yeakel's order is a final decision, setting the groundwork for the 5th Circuit to review the merits of the law, not just an injunction against it.

The proposed restrictions were among the toughest in the nation and gained notoriety when Democratic state Sen. Wendy Davis launched a nearly 13-hour filibuster against them in June. The law also bans abortions at 20 weeks of pregnancy and beginning in October 2014 requires doctors to perform all abortions in surgical facilities.

The filibuster forced Gov. Rick Perry to call a second special legislative session for the Republican-controlled Legislature to pass the law. Davis is now running for governor on a women's rights platform. Since Perry is retiring, Abbott is Davis' likely Republican opponent, adding a political layer to the legal drama.

During the trial, officials for one chain of abortion clinics testified that they've tried to obtain admitting privileges for their doctors at 32 hospitals, but so far only 15 accepted applications and none have announced a decision. Many hospitals with religious affiliations will not allow abortion doctors to work there, while others fear protests if they provide privileges. Many have requirements that doctors live within a certain radius of the facility, or perform a minimum number of surgeries a year that must be performed in a hospital.

Beth Shapiro, chairwoman of board of directors of Lubbock's Planned Parenthood Women's Health Center, said no hospital in Lubbock has granted privileges to the lone doctor from East Texas who flies in to do abortions when there are procedures scheduled. There is not incentive for hospitals to do so, she said.

"I don't see why local hospitals would give privileges to someone who's not going to admit patients," Shapiro said. "I don't see what the business and financial incentive would be. ...it's "more work and not going to increase patient load."

Hospitals are required to do yearly reviews on physicians to keep accreditation up to date, she said.

Shapiro said she wasn't aware of a woman getting an abortion in Lubbock who had complications and needed hospital care.